Protection And Identification Of Well-known Trademarks In China

Trademark protection has locality differences

, China's trademark administration pursue a policy of the earlier application as distinguished from America's "prior right use" policy. Trademarks have to be registered before they get legal protection in China. But for unregistered well-known trademarks, Chinese laws have special regulations to protect and the protection is not less strong than the registered trademark. When protecting a well-known trademark in China, there must be legal reasons, such as infringing upon trademarks, and the trademark is officially recognized as a well-known trademark.

Trademark Law of the People's Republic of China Article 13: A trademark shall not be registered and its use shall be prohibited where the trademark constitutes a reproduction, an imitation, or a translation, of a well-known trademark of another person not registered in China and is likely to create confusion, if the trademark is the subject of an application for registration in respect of goods which are identical or similar to the goods to which the well-known trademark applies. The Provisions for Identification and Protection of Well-Known Trademarks has made special and specific provisions on identification and protection of well-known trademarks and expands the scope of protection of well-known trademarks. It not only prohibits improper action of registration and use, but also forbids others to use it as their own firms.

Paris Convention on the Protection of Industrial Property (hereinafter designated as "the Paris Convention") that China took part in states that: States parties' registered trademark reproduce, imitate, or translate other States parties' well-known trademarks, liable to create confusion, ex officio or at the request to refuse or to cancel the registration, and to prohibit the use. The Paris Convention advances to protect the well-known trademarks, but do not stipulate feasibility measures for the identification of well-known trademarks. Agreement on Trade-related Aspects of Intellectual Property Rights (hereinafter designated as "TRIPS") makes a supplement to the above terms in the Paris Convention: in determining whether a trademark is well-known, Members shall take account of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Member concerned which has been obtained as a result of the promotion of the trademark.

Various factors need to be considered to recognize well-known trademarks. The Provisions for Identification and Protection of Well-Known Trademarks promulgated by State Administration for Industry & Commerce of the People's Republic of China has made specific expression for the connotation of "relevant public" involved in TRIPS: includes the consumers related to certain kind of commodities or services indicated by a trademark, manufacturers of the said commodities or other operators who provide relevant services, and the sellers and other people involved in the market.

The identification of well-known trademarks in China is in conformity with widely-used international principle, which is "Passive Identification, Casework". Only when the recognizing authority receives the complaints of trademark owner's trademark disputes or tort and requests to determine that the trademark is well-known trademark can they identify whether the trademark is well-known. There are two ways to Identify well-known trademark, according to the Implementing Regulations of the Trademark Law of the People's Republic of China and Interpretation of the Supreme People's Court Concerning the Application of Laws in the Trial of Cases of Civil Disputes Arising from Trademarks, well-known trademark can identify by administrative identification and judicatory identification. Administrative identification includes the identification of trademark objection by Trademark Office and the identification of trademark objection by Trademark Review and Adjudication Board. And judicial identification is often put forward in the cases of trademark infringement and domain name infringement.

According to the Provisions for Identification and Protection of Well-known Trademarks, the following materials may be used as the certification materials of a well-known trademark:

1. Relevant materials that can evidence the extent that the relevant public know the trademark;

2. Relevant materials that can evidence the lasting time of the trademark, including the materials involving the history and scope of the use and registration of the trademark;

3.relevant materials that can evidence the lasting time, extent and geographic scope of any publicity work, including ways of adverting and promotion, geographic scope, type of publicity media and the quantity of the launched advertisements;

4. Relevant materials that can indicate that this trademark has been protected as a famous one, including the pertinent materials that the trademark has been protected as a well-known trademark in China, or in other country or region;

5 Other evidential materials that can indicate the trademark is famous, including the materials regarding the recent 3 years of output, sales volume, profit payments and tax turnover and sales territory of the principal commodities using this trademark.

China is a first-to-file jurisdiction for trademarks. A registered trademark shall be protected by law. According to provision of Chinese lawThe Scope of the Protection of Unregistered well-known trademark is just restricted in the same or similar goods, while a registered trademark shall enjoy the protection of Cross-category, so we suggest that the well-known trademark, if not registered in China and Madrid ,once there are trademark infringement in China ,one shall:

1. According to the Chinese law, you might appeal to Intermediate People's Court which has jurisdictional for trademark infringement, and to request for Judicial Determination of well-known trademark in the claims;

2.Based on the decision apply to the Trademark Office for the revocation of the registered trademark after win the lawsuit

3. Apply for trademark registration in China, safeguard the rights and interests better and avoid unnecessary legal disputes.

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Madrid Trademark Registration refers to apply for international registration of trademark to World Intellectual Property Organization international bureau according to the "Madrid Agreement for International Registration of Trade Marks" "Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks" One or more High Contracting Parties can be appointed to protectorate on the application.

by: Sino-Link Consulting

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